For 9 years, Israel tried to undermine the ICC

Blatantly disregarding the International Court of Justice’s order to halt its military offensive in  Rafah, which began on May 6, Israel continued its overnight shelling and airstrikes there last Tuesday. It also announced it would pursue the war in Gaza throughout 2024.

The bombardments killed at least 37 displaced Palestinians sheltering in tents. The Sunday before that, 45 people in a tent camp perished in a blaze presumed to have been triggered by similar airstrikes. Israeli Prime Minister Benjamin Netanyahu said it happened because of a “tragic mishap.” 

As we know, Israel has been waging war for eight months now, intent on dismantling the Palestinian armed movement Hamas. On Oct. 7, 2023, Hamas attacked Israel, killing 1,250-plus Israelis and taking a couple of thousand hostages. Israel wants to take the latter back home, alive or dead.

More than 35,000 Palestinian civilians, including women and children, have been killed. Most of them have died in the type of warfare described above, which has destroyed much of Gaza and forced over a million Palestinians to take refuge in Rafah, where there is a dire lack of food, medicines and amenities.

Last week, the International Criminal Court’s chief prosecutor, Karim Khan, decided to seek arrest warrants from ICC judges against Netanyahu and his defense minister, Yoav Gallant, for alleged war crimes.

 The case that Khan is pursuing basically dates back to 2015, when his predecessor, Fatou Bensouda, opened a preliminary examination into the “situation in the Palestinian territories.” Her inquiry aimed to make an initial assessment of allegations of crimes committed by individuals in Gaza, the West Bank, and East Jerusalem.

(Filipinos will recall that Bensouda also investigated former president Duterte’s “drug war” which has resulted in the present case against Duterte et al now before the tribunal.)

Bensouda’s decision angered Israel, fearing its officials could be prosecuted. Spurning the ICC, Israel had long opposed the court, refusing to recognize its authority. What Israel has been doing since then has been the subject of a remarkable project of investigative journalism.

This week, the reportage was detailed by the Guardian, in a team-up with two Israel-based publications, the +972 Magazine and Local Call.

The investigation revealed how Israeli intelligence agencies carried out a nine-year covert “war” against the ICC. They spied on the activities and communications of numerous ICC officials – including Bensouda and Khan – intercepting their phone calls, messages, emails, and documents in an effort to derail the investigations.

There are many interesting detailed accounts in the investigation report, but we can only note some instances.

The “war” began in January 2015, when it was confirmed that Palestine could join the ICC after the UN General Assembly recognized it as a state (though with observer status). Israel condemned its accession into the ICC as a form of “diplomatic terrorism.”

Bensouda, elected ICC chief prosecutor in 2012 for a nine-year term, quickly saw her opportunity to move. Under the Rome Statute, the treaty that established the ICC, the court can exercise jurisdiction only on crimes committed within member-states. After Palestine became a member, any alleged war crime by those of any nationality committed in occupied Palestine territories fell under her office’s jurisdiction.

On Jan. 16, 2015, Bensouda opened her preliminary examination into the “situation in Palestine.” Immediately Israeli intelligence agencies subjected her work to close surveillance. Meantime, ICC officials in The Hague became aware of specific threats against a prominent Palestinian NGO, Al Haq, one of several human rights groups that frequently submitted documents providing detailed information to the ICC investigation on incidents it wanted Bensouda to consider.

Al Haq’s submissions reportedly linked allegations of Rome Statute crimes to senior Israeli officials, including the military chief, intelligence agency directors, and defense ministers. After the ICC had authorized a full investigation in 2019, the Israeli defense minister designated Al Haq and five other rights groups as “terrorist organizations.”        

 At a certain point, Israeli officials carried out secret back-channel interaction with Bensouda’s office in The Hague. Meetings took place from 2017 to 2019. The back-channelling ended when Bensouda announced the end of her preliminary exam, stating that she believed there was “reasonable basis” to conclude that Israel and Palestinian armed groups had both committed war crimes in the occupied territories.

As Bensouda began a formal investigation, Israel ramped up its campaign against the ICC, and directed Yossi Cohen, then head of the Mossad, Israel’s national intelligence agency, to “turn up the heat” on Bensouda personally.            

In her disclosures to the ICC, Bensouda said that, in three meetings all initiated by Cohen, the Mossad chief put pressure on her not to proceed with the criminal investigation in the ICC’s Palestinian case. Among others, she disclosed the following:

• Cohen told her, “You should help us and let us take care of you. You don’t want to be getting into things that could compromise your security or that of your family;”

• Cohen used “despicable tactics” in his effort to intimidate and influence her, which Bensouda firmly resisted. The ICC officials likened his behavior to “stalking;”

• The Mossad took a keen interest in Bensouda’s family members. They obtained transcripts of recordings of an apparent sting operation against her husband, and Israeli officials then attempted to use the materials to discredit Bensouda, in vain.

On these revelations, Karim Khan has warned that he would not hesitate to prosecute “attempts to impede, intimidate, or improperly influence” ICC officials.

Despite pressures, like Bensouda, Khan chose to press ahead. On the war crimes for which he seeks arrest warrants against Netanyahu and Gallant, he said the duo stand accused of responsibility for extermination, starvation, denial of humanitarian relief supplies, and deliberate targeting of civilians.

“I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offenses… Those who do not comply with the law should not complain later when my office takes action,” Khan declared, adding: “That day has come.”